How the pro-religion court rulings may end up hurting conservative Christianity

These victories will lead to all sorts of activists making religious liberty claims to advance their goals, and they won’t always be conservative.

Members of the Supreme Court sit for a new group portrait after the addition of Associate Justice Ketanji Brown Jackson, at the Supreme Court building in Washington,  Oct. 7, 2022. Bottom row, from left, Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice of the United States John Roberts, Associate Justice Samuel Alito and Associate Justice Elena Kagan. Top row, from left, Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh and Associate Justice Ketanji Brown Jackson. (AP Photo/J. Scott Applewhite)

(RNS) — A recent series of Supreme Court cases has been cast — by supporters and opponents — as privileging religion over secular goals.

In a legal sense that may be true but if history is any guide, it may be religion, and perhaps evangelical Christianity in particular, that ends up suffering.

First, a major risk for Christians comes from how politics is prompting many to redefine their faith. Conservative Christians have made the freedom to oppose same-sex marriages — and in some contexts, opposition to rights of LGBTQ Americans — central to their religious creed. In both courts and popular culture, if you see a claim that Christians’ rights are being infringed, it’s most often in relation to their ability to live faithfully in their opposition to LGBTQ behavior. Not because they have been stymied in their ability to live out the golden rule, say, or to show their love of Christ.

I’m not saying whether that’s constitutionally right or wrong. But conservative Christians are not just securing constitutional rights — they are conveying to the world what they think is at the heart of their faith.

This has consequences. The Public Religion Research Institute has found that the percentage of Americans identifying as evangelical Protestant dropped from 23% in 2006 to 14.5% in 2020. Part of the reason, they concluded, is that 70% of millennials “believe that religious groups are alienating young adults by being too judgmental on gay and lesbian issues.” Among those who left their childhood religion and are now religiously unaffiliated, nearly a quarter (24%) said teachings about gay and lesbian people were an important factor.

I don’t doubt the sincerity of these evangelicals’ views or necessarily even the strength of their legal argument. I’m suggesting instead that evangelical Christians may be winning the constitutional battle but losing the spiritual war.

Second, the legal theories being advanced to protect the primacy of traditional Christianity will also end up being used to advance Islam, Judaism and other faiths. Last year, in Carson v. Maconthe court approved the use of public money to fund vouchers for private schools, often Christian private schools. Many other states are moving toward doing the same.

Yet the court has always also asserted that if the government subsidizes one religion it must subsidize all religions. There are now about 32,000 Muslims in private religious schools in the United States. They will no doubt petition to benefit from voucher programs too. There are Orthodox Jewish schools, Buddhist schools and schools dedicated to Transcendental Meditation. I suspect that the more states provide government funding for religious schools, the more religions will establish schools.

Constitutionally, this is appropriate. I’m just noting that if cases such as this are a victory for the Christian God, they are also a victory for Allah.

Third, the legal doctrine you create for “your side” will be quickly used by the “other side” against you. It was actually progressive jurists in the 1960s who pioneered the idea that real religious freedom meant striking down neutral government laws that might inadvertently restrict religion. They focused on religious minorities, like Seventh-day Adventists and the Amish — but soon enough conservative Christians employed the same legal theories to advance their own causes.

The court has edged closer and closer to the idea that any time there is a conflict between rights, the tie goes to religion. I certainly sympathize with that; we want to avoid forcing people to choose between their faith and abiding by the law, whenever possible

But this will lead to all sorts of activists making religious liberty claims to advance their goals, and they won’t always be conservative. Pro-choice activists are already using religious liberty claims to challenge abortion laws. They argue that since some religions believe life begins later than conception, laws that assume otherwise violate their religious beliefs. A group of nuns sued to block an oil pipeline on the grounds that it violated their religious freedom, citing Pope Francis’ encyclical on the importance of combating climate change.

A group of Orthodox Jews has fought the New York City health department, which is trying to limit a practice in which rabbis suck excess blood off a circumcised penis and which seems to have resulted in cases of herpes. The rabbis have claimed the city is violating their religious freedom. So far they have not prevailed, but the latest Supreme Court rulings could strengthen such arguments.

Creative activism is just getting started. A progressive Christian web designer could claim that fighting discrimination is so central to their faith that they should be able to turn away customers they believe to be bigots.

James Madison, prime author of the First Amendment, believed it was essential to block government’s harmful interference — but he also believed government should not help religion.

He thought such efforts would backfire and ultimately harm religious movements. In the 1780s, there was an effort in Virginia to provide a direct government subsidy to churches. It was quite pluralistic, providing benefits across all Christian denominations. Madison ardently opposed it, arguing that government support for religion would erode the vigor and health of religion.

His case? Throughout history, Christianity was strongest and purest when not backed by government. Government support “corrupts religion into an instrument or an usurper of the policy of the state.” Faith is strongest when people embrace it freely, and God’s power was so strong, it shouldn’t need help from the state. Asking for preferential treatment, he said, reflected “Unchristian timidity.” That’s why religion should be “exempt from its cognizance.”

Well, the Supreme Court has become quite cognizant of religion. It scrutinizes whether a claim involves a religious argument and whether the beliefs are sincere.

It’s not hard to imagine a day when religious freedom becomes viewed as a constitutional parlor trick. If you want to win in the Supreme Court, just concoct a religious freedom claim. People will come to distrust the sincerity of religious teachings — and of religion itself.

(Steven Waldman is author of “Sacred Liberty: America’s Long, Bloody and Ongoing Struggle for Religious Freedom” and “Founding Faith: Providence, Politics and the Birth of Religious Freedom in America.” The views expressed in this commentary do not necessarily reflect those of Religion News Service.)

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